Citation Nr: 9822190
Decision Date: 07/22/98 Archive Date: 08/03/98
DOCKET NO. 97-23 404 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to an increased rating for service-connected
scars on right hand and forearm, currently evaluated as 10
percent disabling, to include the issue of whether there was
clear and unmistakable error in the November 1996 rating
decision.
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
REMAND
The appellant had active military service from September 1951
to October 1953. This matter comes before the Board of
Veterans’ Appeals (Board) on appeal from a November 1996
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in San Juan, Puerto Rico, which granted
a 10 percent disability rating for the appellant’s service-
connected scars on the right hand and forearm. He maintains
that he is entitled to a higher disability rating.
First, there are medical records that the RO must obtain. In
his claim for an increased rating, the appellant indicated
that he was being treated at the VA Hospital for his service-
connected condition. However, the RO did not obtain these
records, and the appellant’s VA medical records must be
associated with the claims file. The appellant’s treatment
records are relevant to his claim for an increased rating and
necessary for a fair adjudication of his claim. Robinette v.
Brown, 8 Vet. App. 69 (1995).
Second, the appellant’s service medical records show that he
incurred shell fragment wounds to the right hand and forearm.
The report of his entrance examination in November 1950
showed that he had a preexisting scar on the dorsum of the
right wrist, and upon separation from service, he indicated
that he had sustained a “machete” injury to the dorsum of
the right hand that involved the tendons. Upon VA
examination in 1955, it was indicated that the appellant had
multiple tiny s-shaped linear and stellate shaped scars on
the right hand and forearm that were well healed and not
adherent. A rating decision of June 1955 granted service
connection for multiple tiny scars on the right hand and
forearm and indicated that a scar on the dorsum of the right
wrist was not incurred during service. The non-service
connected status of the scar of the dorsum of the right wrist
was carried forward on a rating of January 1973.
Upon VA examination in 1996, it was indicated that the
appellant had eight scattered scars on the right hand that
were not tender, inflamed, swollen, depressed, ulcerated, or
adherent. He also had a scar on dorsum of the right hand,
proximal to the wrist, which was tender to palpation. The
rating decision of November 1996 assigned a 10 percent
disability rating for the appellant’s service-connected scars
based on a tender and painful scar on the dorsum of the right
hand.
Service connection for the scar on the dorsum of the
appellant’s right wrist has not been granted, and it has, in
fact, been determined not to be service connected. However,
the rating decision of November 1996 assigned a compensable
disability rating based solely on this nonservice-connected
condition. Therefore, the RO should determine whether the
November 1996 rating decision that granted the 10 percent
disability rating was clearly and unmistakably erroneous.
Furthermore, the RO should assign an evaluation based on the
appellant’s disability, if any, due to the service-connected
scars from shell fragment wounds on his right hand and
forearm.
Accordingly, the case is REMANDED for the following:
1. Request the appellant’s medical
records from the appropriate VA Medical
Center. Associate all requests and
records received with the claims file.
2. Determine whether there was clear and
unmistakable error in the rating decision
of November 1996 that assigned a 10
percent evaluation for a tender scar of
the dorsum of the right wrist, a
condition previously adjudicated non-
service connected. Thereafter,
readjudicate the appellant’s claim for an
increased disability rating for his
service-connected scars on his right hand
and forearm and assign an evaluation
based solely on the disability, if any,
resulting from these scars. If any
benefit sought on appeal remains denied,
provide the appellant a supplemental
statement of the case, and allow an
appropriate period of time for response.
The appellant is free to furnish
additional evidence and argument while
the case is in remand status. Booth v.
Brown, 8 Vet. App. 109 (1995).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional information. No
inference should be drawn regarding the final disposition of
this claim as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1998).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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